The Changes are Beginning

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By William Wiley, December 14, 2016

We’ve been predicting it here at FELTG for nearly a year. Congress and the in-coming administration are fed up with what they believe are glitches in our civil service system, which require that bad federal employees be coddled and tolerated rather than held accountable and removed from service. We’ve been saying you’ll need to be prepared for the civil service world to be different starting in 2017.

Well, our prediction was off by about three weeks. The civil service world is starting to change NOW. So buckle up your seat belt and prepare for a bumpy ride.

The first change that is going to make a direct impact on an agency’s ability to fire bad employees is the passage of the ”Administrative Leave Act of 2016” just last week. The “sense of Congress” behind that piece of legislation is that agencies have been abusing the right to place an employee on administrative leave (regular salary, but no work required) for years. You may have seen some of the articles in the media, the ones about the federal employee sent home by his agency on extended administrative leave pending the outcome of an agency investigation into suspected misconduct. My favorite recently was the SESer who was sent home for two years pending the outcome of an agency investigation. He was interviewed while he was putting in a vegetable garden behind his home in Falls Church, noting that it was his second growing season on full pay (and earning years of credit toward retirement, as well). Just think. If you’re some out-of-work coal miner in West Virginia who’s trying to get by on a few hundred dollars a month of unemployment insurance and you read about this guy, you just might be tempted to elect someone to run the government who promises to drain the swamp of stuff like this.

Well, the water has begun to recede. Last week, Congress passed legislation that, for the first time in history, places specific limitations on an agency’s ability to grant indefinite administrative leave. Effective no sooner than September 2017, and no later than May 2018, every major agency in the Executive Branch will have to have a policy in place that explains in detail when administrative leave will be approved, who can approve it, and acknowledges significant limits in its application. Fortunately, buried deep in the legislation that limits administrative leave, there’s a beautiful little nugget of change that provides for something that we here at FELTG have been campaigning for more than a decade.

But first, the major thrust of the legislation:

  • In general, an agency can place an employee in an administrative leave status no more than 10 workdays each calendar year. Currently, there is no limit.
  • The law creates a new category of excused absence distinct from administrative leave: Investigative Leave.
  • Investigative Leave (IL) is limited. Any agency manager (apparently) can be delegated the authority to impose up to 30 days of IL. However, any extensions beyond the initial 30 days can be implemented only by the agency’s Human Capital Officer. Extensions can only be in 30-day increments and cannot exceed a total of 90 days of extension.
  • Placing an employee on IL for more than 70 days can be challenged to the Office of Special Counsel as based on a prohibited personnel practice (most likely, whistleblowing).
  • You’re going to love this: If the employee resigns before the investigation is completed, and the investigation results in “adverse findings” about the employee, the agency has to include those findings in the employee’s Official Personnel Folder.
  1. The agency has to give the former employee notice that this is going to happen.
  2. The former employee has the right to respond to the notice in writing and with documents (thank god, no hearing).
  3. The former employee has the right to appeal the final decision of the agency to retain the notation to the Merit Systems Protection Board.

When I read about this requirement to document the OPF of a former employee, perhaps a now-retired senior citizen, I was reminded that in the Middle Ages, some societies would dig up the bodies of deceased individuals, try them in some sort of medieval court, then punish the body if it was found guilty of the charges. I once worked with a manger who objected to a troubled employee retiring because he wanted to “brand” her with a removal. Come on, kids. When they’re gone, they’re gone. What a spectacular waste of government time and energy to argue otherwise.

But enough said about the big stuff. If you conduct investigations, you will want to seriously read this new legislation and be as active as possible in the drafting of the implementing regulations. It’ll be a new world order for a lot of Inspectors General and Professional Responsibility agency investigators starting next year. And perhaps in some future FELTG newsletter, we’ll flesh out the details of what’s required under the new legislation if you conduct investigations. We’ll certainly be adding some new slides to our famous and fabulous Workplace Investigations seminar next scheduled for April 24-28, 2017.

It’s the non-investigatory nugget we’re after in this new law that will make your life better when it comes to firing bad employees. It has little to do with the “sense of Congress” to control leave abuse, but it’s tucked right in there along with all the restrictions on agency authority. The change that may save your life (no kidding), that we have fought for here at FELTG since 2001, is a new form of excused absence called Notice Leave.

If you want to read about that little gift, you’ll have to check out a later article in this here newsletter. After you read it, call the grandkids and tell them that the chances that you’ll be around until they graduate from high school just went up 1000%. That is IF your agency figures out how to take advantage of this long-overdue flexibility. And of course, we at FELTG are happy to tell agencies how to do just that. Wiley@FELTG.com

Whoa, Doggies; This is a Bad One

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By William Wiley, December 14, 2016

I love the law. I adore justice. But sometimes I think that judges who interpret the law and thereby dispense justice need to spend a bit more time in the real world before they issue decisions that affect the real world.

Issue in point: the bad dark road that the Federal Circuit Court of Appeals is taking us down relative to due process in the appeal of removals from the civil service. For many years, the Board and the court have duked it out on the issue of due process. In the late ’80s and into the ’90s, when I was chief counsel to the Board chairman, MSPB issued decisions that attempted to reflect the real world of a federal workplace. Yes, yes, yes, an employee is entitled to know the reasons that his removal is proposed. However, the Board was comparatively good about forgiving agencies who did not notify the employee of every possible nit and jog that conceivably could have been some small part of a decision to fire somebody. When “extra” information would show up in the mind of the Deciding Official (DO), MSPB would evaluate whether it really made a difference to the employee and, more often than not, would find this “new” evidence to be duplicative or reinforcing, or otherwise not a violation of due process. Without saying it in a decision, the Board members were acknowledging their own personal experiences in a federal workplace, and recognizing that in the real world, a lot gets talked about around a removal, on many levels.  As long as an employee was informed of the big stuff relevant to making a removal decision, MSPB tended to ignore the little stuff that might have been part of the decision but was so minor as not to have had an adverse effect on the employee.

Unfortunately, those guys wearing the black robes over at the Federal Circuit did not have the same workplace experiences, and tended to think in terms of a perfect due process world, a world in which agencies had to inform the employee in the proposal letter of darned near EVERYTHING in the DO’s mind when he made the decision to remove. The big deal case in which the Federal Circuit emphasized its reality-lacking tell-all philosophy was Stone v. FDIC, 179 F.3d (Fed. Cir. 1999), a decision in which it spanked the Board from not reversing a removal based on due process grounds when the agency DO considered facts not in the proposal. From that point forward, smart agencies acted to make certain that DOs were careful to restrict their thoughts and their decision letters to only those facts noted in the proposal notices. The result is that these days, it is much more likely than it was previously, the DO will have to notify the employee of extra information that has come up during the proposal period and allow additional response time.  In fact, you regular readers might remember reading in our FELTG newsletter previously that we are almost at the point of suggesting that DOs issue draft decision letters to employees for response prior to a final decision being made. That’s how afraid we are that a DO will inadvertently rely upon something in a decision that was not included in the proposal.

Well, now we have a new decision from the Federal Circuit that pushes us even farther down that dark and elusive road of perfect due process, Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (Nov 18, 2016). In that case, the third-level supervisor emailed the employee’s first- and second-level supervisors and said that if the employee had done what was alleged, “we need to try and terminate her.”  During the subsequent proposal and removal procedure, the employee was not informed of the pre-proposal email. Although the DO testified at hearing that he was not influenced in his decision to remove by the email, a 2 to 1 Federal Circuit set aside the removal based on a due process violation.  It reasoned that even though the email was pre-proposal and lacked actual influence, it was an ex parte communication “of the type likely to result in undue pressure upon the Deciding Official.”

Oh, my goodness. These types of managerial communications occur all the time in a federal workplace. Agencies do not fire career employees lightly. There is always a lot of pre-proposal discussion – among managers, Human Resources professionals, and legal offices – about what to do in a particular situation. Before FEA v. DoD, those discussions did not become part of a case unless they were relied upon by the DO in making her decision.  Now, I don’t know where the line is, the “type likely to result in undue pressure.”  Here the pressure came from up the chain of command.  But what if it came from the director of Human Resources?  Or, in an unprivileged manner from an agency attorney?  Is the safest solution to provide the employee an attachment to the proposal letter that lists in detail ALL of the pre-proposal communications held regarding the employee’s misconduct?

I hope I am over-reacting, that the court saw something unusual in this case that made this email a unique critical communication that we will not see again.  Alternatively, I’m hoping that the Federal Circuit will grant en banc review and set aside this misplaced unpractical holding. Because if I am right and this thing gets upheld, I’m not sure just what agency officials are supposed to do. Wiley@FELTG.com.

Your Life Just Got Better (and Maybe Longer)

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By William Wiley, December 14, 2016

Earlier in this newsletter, we explained how the recently enacted “Administrative Leave Act of 2016” limits the length of time that an agency can keep an employee on paid leave while an investigation is being conducted.  We also noted that an employee who has left the agency during the course of an investigation must have his OPF annotated after departure if the results of the investigation include “adverse findings.” Clearly, these are important aspects of the legislation for those legislators who proposed the bill initially. However, tucked in this legislation is a much more important change to our business of federal accountability, a change that affects every supervisor and every workplace in government much more than do the restrictions on time limits for investigations and annotations in retired OPFs stored in some vault in a mountain in Virginia:

Notice Leave

The situation has been this for nearly 40 years:

  1. The law requires that a bad employee be kept on the payroll for at least 30 days after he is given notice that he is probably about to be fired.
  2. OPM, in a snit of ridiculous, short-sighted, rule-making, has in force a regulation that says that normally an employee who has been given notice of an impending removal is to be kept in her regular position.
  3. Therefore, agencies who don’t think things through keep bad employees in the federal workplace where they have access to government computer systems, coworkers, and members of the public during the most stressful of moments one can imagine, with nothing to lose and unbounded harm that can be caused. All you need for a mass killing in a federal workplace is a depressed individual with an automatic rifle carrying a valid government ID badge and a proposed removal notice.

According to the Bureau of Labor and Statistics, two people are killed by a coworker every workday in America. You would think that the policy writers at OPM would have more concern for the lives of their fellow civil servants.

Add to this foolishness the decisions of some senior managers that bad employees should not be placed on administrative leave during the 30-day notice period that follows a proposed removal. This combination of poorly-thought-through policy mandates creates a burning fuse of potential workplace death that could easily be avoided if those who made the policy worked on the front lines where their lives would be in danger.

But finally, we have relief from this awful policy combination. The new law creates a form of excused absence to be known henceforth as Notice Leave (NL).  It provides authority for an agency to place the bad employee into a paid excusal status for anyone whose removal has been proposed. The length of NL, unlike the restrictions placed on IL, is “the duration of the notice period.”

We’ve been fighting for this sort of protection for the federal workplace so long that they should have named it “FELTG Leave.” But we’ll take comfort in knowing that maybe somebody who is reading this newsletter today will be around for another edition because of the agency’s authority to get people out of the workplace once their removal is proposed, no matter what they call it.

Be careful, though.  The law lays out several criteria that have to be met before NL (aka FELTG-L) can be enforced.  If your agency’s leadership fails to see the importance of getting bad employees out of the workplace once their proposal is removed, your policy makers may make the mistake of making it difficult to authorize NL.  So stay tuned. Here at FELTG we have your back and will soon be giving specific recommendations to you and your policy makers as to how to handle this new flexibility for the greatest benefit, in spite of what some might see as road blocks to fully exploiting its benefits.

Hey, Congress. Thanks for the early Christmas present. Whether you realize it, or not. Happy Holidays right back at you.

Wiley@FELTG.com

Draining the Discipline Swamp

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By William Wiley, December 5, 2016

Dear President-Elect Trump:

Hey, how’s it going? Getting settled into that commander-in-Chief-to-Be role? Having fun answering phone calls and sending out tweets 24/7? Ready to run the Executive Branch? Trust me; we here in the federal employment law community are just as excited as you must be by this prospect.

And here at little old FELTG, we stand ready to help you, in any way we can. We are All Civil Service / All the Time, and we just love to act all smart and give out advice, whether the advice is asked for, or not.

You might remember that last week, we dropped you a public note about how screwed up the current oversight functions are within our beloved civil service. There are at least seven avenues of review if an employee claims to have been mistreated by his employing agency (eight if you count our previous typo). Their jurisdictions may or may not overlap, depending on exactly the claim being made, their procedures are all different, and they each have their own turf to defend. We suggested oh-so-delicately that you add fixing this quagmire to your to-do list once you take the civil service oath.

Interesting Fact: The very first law passed by Congress, Law Number One as they say over at the National Achieves, was that those of us lucky enough to be chosen to work for the United States government must swear allegiance to it. That oath you’ll be taking on January 20 is the very same oath that every civil servant has ever taken. Welcome to the club.

In response to our article last week about the oversight mess you’re inheriting, we received figuratively thousands of demands and pleas that we provide the answer to this mess. It’s one thing to point out a problem; it’s a higher calling to propose a solution. Never one to duck a higher calling, here we go with the FELTG Fix for the Problem of firing a bad federal employee.

Stay with us here; this gets pretty darned deep.

The Root of the Problem:  A foundational component of our civil service is that once an employee completes her probationary period and reaches a career status, she is vested in her position with the government. The courts, including the U.S. Supreme Court, have historically acknowledged that a career federal employee has a “property interest” in continued employment.

In our great country, an individual retains his property until it is either taken from him or he disposes of it himself (as a gift or as a sale). A taking occurs when someone breaks into your home and removes that big flat screen TV from your Man Cave wall. The more civil approach to a taking is when one person sues another person, demanding property ($) to right some wrong. Separately, the state can take away a citizen’s property by demanding the payment of a fine such as a parking ticket. Unlike an illegal taking (like a burglary), legal takings are adversarial and fought out in court, using controlling law, evidence, and argument before a neutral fact finder. This is known as the “adversarial” process; a process whereby property is taken away from someone in a fair and just manner.

When a federal agency fires one of its career employees, it has taken away that employee’s property. Therefore, to do it legally, the agency is required to subject itself to an “adversarial” process, seven of which we noted in last week’s article. In those processes, the agency has the burden of proving that the employee is at fault, with the employee having the commensurate right to argue that he is faultless. In a fault-based system like this, we need investigators, arbitrators, judges, boards, commissions, authorities, lots of time and money, and lots and lots of lawyers.

Not only is the adversarial world expensive and time consuming, it doesn’t always produce the right result. The side that happens to have the most money or best advocate may win an appeal, even though the other side should have won. Sometimes the government will pay money to “settle” a case, even though it is in the right, but doesn’t want to dedicate the adversarial resources to prove it. After 40 years of the current civil service law, agency removals are set aside on appeal at a rate of one-in four or one-in-five. That’s a dismal success rate when you’re talking about fairness to an employee and government money that is being wasted.

The Fix:  About 150 years ago, Germany ran into a similar problem in the workplace. Individuals were getting injured at work without any assurance that their injuries would be compensated. If the injured individual felt that the employer was at fault, he had to hire a lawyer, bring suit, and then he may or may not have been successful in receiving damages. Any damages awarded, of course, had to be shared with the successful attorney who represented the injured worker rather than go to the worker who no doubt needed the money more. Individuals who could not afford a lawyer became a drain on society if they could no longer work, often requiring years of charity to survive.

In the late 1800s, Count Otto von Bismarck came up with an alternative. He pressed through a law that characterized on-the-job injuries as “no fault” events, thereby removing them from the adversarial world of lawsuits. Today, in our country we call programs like his “workers’ compensation programs.” You get injured on the job, you get compensated without having to get all adversarial and prove fault.

Along those same lines of a “no-fault” process, our country (as do most all western countries) maintains the right of “eminent domain.” If the fed needs to build a road through your farm, it gets to take it if it compensates you for the property. You haven’t done anything wrong; there’s no fault when your private property is expropriated by the government for the public good. It’s just our legal way of acknowledging that Mr. Spock was onto something when he said, “The needs of the many outweigh the needs of the few.” The Wrath of Khan (1982). You have been relieved of your property in a non-adversarial manner: a sale, albeit a forced sale.

And, thus, our recommended fix. Do away with the adversarial nature of a firing a civil servant and convert it to an eminent-domain-like taking, based on the following precepts:

  • Every year of acceptable service that an employee completes entitles him to a year of ownership of his position.
  • Individuals who work for the government 20 years have 20 years of entitlement. Therefore, even if she messes up in year 21 and deserves to be fired, she has earned value in the 20 years she did good work.
  • An agency should be able to “buy back” a job from an employee. Just like the farmer required to give up (for pay) the south 40 for construction of a freeway, develop a formula for valuing a job held by a career employee – based on salary and length of service – and allow the government to remove the employee by paying the employee whatever the value is for his job. No need to prove fault. No reason to fight it out in an adversarial nature. The job is worth this much money. Here’s a check. The agency can now use the position for the public good by hiring a replacement.

And now I hear the nay-sayers:

“But Bill, won’t that cost a lot of money?” No, not compared to keeping a bad employee on the payroll through retirement or devoting resources to defend a removal in a risky adversarial forum.

“But don’t we need to ‘punish’ somebody?” No, we learned from Count von Bismarck’s approach that punishment is not necessary to achieve a desirable end, even if fault is somehow involved.

“But won’t this radically change what the civil service is all about?” No, I won’t give you “radical.” However, I’m OK with characterizing this no-fault approach as being a “fundamental” change.

More importantly, though, I think that it is a pragmatic change, a change designed to protect an employee’s rights to an encumbered position by setting a price tag on those rights while simultaneously allowing an agency the flexibility to simply and quickly manage the darned federal workforce. If we are to listen to the voices of many of our elected officials (and those who tried to become elected, but failed), something needs to be done about this quagmire, this swamp.  The civil service is seen by some as a stagnant pool of inefficient workers who cannot be fired.  While we strongly disagree with that view here at FELTG, we have to accept that this is the world in which we live. We need to take steps to deal with it instead of just saying that they are all wrong, we are all right, and things should stay the same as they always have been.

The current oversight of the civil service removal process is adversarial, expensive, and time consuming. Converting to a no-fault buy-back process protects the employee’s rights to the position he has earned while allowing for the prompt secure removal of non-productive individuals. Yes, this approach changes in some ways a fundamental structure of our civil service system.

But maybe a fundamental structural change is exactly what is needed. Wiley@FELTG.com

The Oversight System Quagmire

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By William Wiley, November 29, 2016

Dear President-Elect Trump:

We have so much advice for you here at FELTG. You see, we’ve been messing around with the civil service for nearly 40 years. We’ve figured out a few things because we’ve seen a few things. Here’s another little mess for you to think about cleaning up, after you get that wall going and all those “bad” people deported.

At the heart of a civil service system are built-in protections to prevent managerial overlords from unfairly harming hard-working career federal employees. Put simply, if a civil servant believes that he has been treated unfairly, he should be able to complain to someone with oversight authority who will consider the facts and decide whether the employee has been treated unfairly.

The most serious unfair treatment involves a manager taking away the salary of an employee. Here are the options that an employee has today if she believes that a manager has unfairly taken away part of her salary:

  1. If she believes that the manager was motivated to take away her salary because of her RACE/SEX/AGE/etc., she can file with the US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
  2. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  3. If she believes that the manager was motivated to take away her salary because of her WHISTLEBLOWING ACTIVITY, she can file with the US OFFICE OF SPECIAL COUNSEL.
  4. If she believes that the manager was motivated to take away her salary because of her RIGHTS UNDER A UNION CONTRACT, she can file with an ARBITRATOR.
  5. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  6. If she believes that the manager was motivated to take away her salary because of her STATUS AS A VETERAN, she can file with the US DEPARTMENT OF LABOR.
  7. If she believes that the manager was motivated to take away her salary in violation of her DUE PROCESS RIGHTS, she can file with the US MERIT SYSTEMS PROTECTION BAORD.
  8. If she believes that the manager has erroneously set her salary low in violation of her RIGHT TO PROPER COMPENSATION, she can file with the US OFFICE OF PERSONNEL MANAGEMENT

Of course, there are some minor tweaks to these employee rights. For example, the union must approve the employee’s invocation of arbitration to resolve a grievance, and there are dollar limits in place for other appeal rights. Still, the bottom line is that there are eight separate independent civil service oversight agencies, each with its own staff, official seal, and unique procedures, that have the responsibility of resolving issues of fairness that arise between a civil servant and his employing agency.

You want more craziness? Most of these oversight agencies are limited as to what they resolve when an employee complains about unfair treatment. They cannot resolve any general mistreatment issues, only issues within their jurisdiction. For example, if an employee complains to EEOC about mistreatment, even if EEOC concludes that the union contract has been violated, it is without the authority to provide the employee any relief. If an employee complains to FLRA about mistreatment, even if FLRA concludes that the employee has been mistreated because of whistleblowing, it is without the authority to provide the employee any relief.

I’m not finished with the craziness. The general view when there are several possible oversight processes is that the employee gets one bite at the apple. Wherever you file first determines which agency and what procedures will control the employee’s complaint. However, if you think about it, an especially creative employee seeking redress of a single personnel action conceivably could complain about parts of the action to all eight oversight entities simultaneously.  I once explained that to a Congressman who responded, “If they’re that smart, they deserve to win their appeal.”

I can’t really argue with the logic of that layperson’s conclusion.

Look, Donald (may I call you Donald?).  The word is that you want to do away with over-regulation, that you want to “drain the swamp” of unnecessary government. We know that you have pipe lines, health care, and trade pacts on your list of to-dos. Well, here’s another one. Now that you see the problem, the solution should be clear. Replace this quagmire with a system that:

  • Makes it drop-dead easy for managers to hold civil servants accountable, and
  • Makes it drop-dead easy for civil servants’ rights to be upheld.

If our little training company can figure this stuff out, so can your administration. Wiley@FELTG.com

More FELTG Advice for our New President

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By William Wiley

Here we go again, acting all uppity by advising the new administration without being asked. Well, somebody’s got to do it, and if not FELTG, who else would dare?

Dear President-Elect Trump:

What took you so long?

While you’ve spent the past few years putting your name on all sorts of things, gallivanting around the country with your BFF Hillary Clinton, bragging about grabbing various body parts, we’ve been busy along with our readers trying to run the darned government. Now that your little holiday is over, welcome to the fight. So let’s get you busy.

You may have heard that a lot of people (e.g., Congress, the media, the public at large) believe that a lot of federal employees (e.g. 7% of 2.1 million civil servants) are poor performers. Although we’ve had a system in place for nearly 40 years to fire non-performers, it doesn’t seem to be working. I bet you’d like to know what’s wrong with it, wouldn’t you?

Well, you’re in luck. Here at FELTG, we know everything civil service. And there’s at least one thing wrong with the unacceptable performance system that you can fix by yourself on Day One without any help from that nasty old Congress.

Length of the PIP:  As just about everybody in the world knows, if a federal civil servant is performing badly, regulations require that the immediate supervisor initiate a Performance Improvement Plan to allow the employee to demonstrate whether he indeed can perform acceptably. Neither the law nor the CFR sets a specific minimum length for a PIP, thereby leaving it up to the discretion of the agency to decide what is reasonable.

And therein lies your first opportunity. Some of your agency managers have set foolishly long PIP periods. Think of it this way. In one of the companies you own, if you hired someone to work for you who was supposedly qualified to do the work, and you gave him a couple of months to get used to the job, if he couldn’t do it, how much longer would you give him to get better? Keep in mind, his salary is coming out of your pocket. You didn’t hire a trainee, someone you have an obligation to train. You’re not a charity. Seriously, how long would you keep him around?

Well, what if I told you that some of your managers have agreed to 90 days AS A MINIMUM?! That’s right; there are perfectly valid union contracts around government, agreed to by agency leadership, that guarantee employees who have already been identified as failing, another 90-day minimum period of time to get up to speed. Those managers are spending YOUR MONEY (actually, taxpayer money that you have been allocated by Congress) in ways they don’t legally have to, for reasons that make no sense. You should not allow that to happen.

Here’s how to fix it. On Day One, send a little memo to your OPM Director that says the following:

Dear OPM:  As soon as possible, if not sooner, amend 5 CFR Part 432 to state that agencies may establish PIPs for periods up to 30 days, and that exceptions must be pre-approved by OPM. Your Friend and New Supreme Commander (aka “The Performance President”), Donald J. Trump

Yes, some of our friends on the union side of the business will take offense at this mandate. By making this change to a government-wide regulation, you are taking the matter off of the bargaining table and preventing your unwise management negotiators from giving this away through negotiation. But with all due respect, and I certainly respect the role of the unions in the federal workplace, it is not their job to run the government. It is yours. And you can’t run an efficient, effective government if you can’t quickly deal with poor performers. So cowboy-up and on Day One send a message to all of us that you plan for your managers to hold their employees accountable.

Because if you don’t, some folks might start thinking that they should not have voted for the “You’re fired!” guy. Wiley@FELTG.com

Agency Legacy Mistake; Board Misplaced Mitigation

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By William Wiley

Back in the early ’80s, we employment law practitioners were working to try to figure out just what the new laws regarding removing unacceptable performers were all about.

One of the unanswered questions from the Act was this: If an agency is confronted with a poor performer, must it use the new 432/PIP procedures to remove him or was it free to use the old 752 “adverse action” procedures that effectively pre-dated the Civil Service Reform Act of 1978 (CSRA)? OPM took a shot in the dark and concluded that 432 procedures must be used and that going forward agencies were precluded from using adverse action procedures for performance problems.

I was a relatively new GS-11 Employee Relations Specialist at the time, working for the Naval Hospital in San Diego. One case I was wrestling with was that of a pediatric nurse who was non-performing in ways that could get patients killed. For example, she was not consistently monitoring intravenous injection sites to make sure the needle stayed in the right place. You don’t have to have much of a medical background to appreciate that if the needle in a baby’s arm gets twisted out of the vein, the IV fluid will go into the baby’s arm tissues, causing swelling and perhaps resulting in loss of the arm or even the patient.

I remember calling the local OPM office for help. Back then (probably around 1981), I thought that OPM must have all the answers because the CSRA had put that agency in charge of advising us lowly HR officials at the various agencies around government. I explained the situation to them and they advised that I had to PIP the nurse and give her another 30 days or so to improve. I asked how many baby arms I should allow to be lost before we found her to be unacceptable during the PIP?

They then advised that I should assign a more qualified nurse to follow her around to make sure that when she made errors, there was someone there who could correct them before any babies died. I went and looked in my Spare Nurse Locker, and you know, there just weren’t any spare nurses in there.

Three things were burned into my brain at that moment:

  1. OPM does not know all the answers.
  2. Legal interpretations that defy common sense are usually wrong.
  3. Agencies absolutely must be able to use adverse action procedures to fire someone who’s past performance is so bad, immediate removal without a PIP is warranted.

Not long after that, the Federal Circuit Court of Appeals and the U.S. Supreme Court agreed with me. Although they did not mention me by name, I am certain that they were thinking of my pediatric nurse when they ruled that yes in-deed-dee, an agency certainly can use adverse action procedures to fire a bad performer. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 475 US 1111 (1986). But there is one caveat: an agency cannot fire someone for poor performance using adverse action procedures if, under the employee’s performance plan, the performance would have been acceptable. In other words, an agency cannot say that 40 widgets per week is the minimum acceptable level of performance for 432 purposes, then order the employee to produce 45 widgets per week, and THEN remove the employee under 752 for “Failure to Perform Duties” or some similar charge label when only 42 widgets are produced.

Common sense to me.

Thirty years later, DVA fired a GS-7 Supervisory Program Specialist using adverse action procedures (no PIP) based on the following charges, all of which smell a lot like poor performance:

  • Failure to Properly Perform Duties
  • Failure to Perform Supervisory Duties
  • Failure to Perform Duties in a Timely Manner

The bottom line to these charges was that the employee was responsible for placing DVA patients waiting for a medical appointment into available appointment slots, a process known as “slotting.” The Deciding Official testified that slotting should be accomplished at a rate of 98 to 100% of the time. Unfortunately for DVA, the employee’s performance standard said that slotting was unacceptable if it fell below 85% efficiency. This mistake, plus some failures of proof caused the judge to set aside the removal and replace it with a demotion from a GS-7 Supervisory Program Specialist to a GS-5 Medical Support Technician.

I think I’m going to start using the term “legacy mistake” for agency procedural errors like this. It’s been a quarter of a century since the court laid down the Lovshin Rule. We’ve been teaching this legal point in FELTG’s fantastic MSPB Law Week program for about 15 years. It’s one thing to make a procedural error in an untested area of law. It’s a substantially different situation when we make a mistake that has been a mistake for 30+ years; a legacy mistake indeed.

So the agency made a mistake in this case. Well, so did the Board. Not necessarily a mistake in law, but a mistake in the reality of the federal workplace. When the Board found removal to be excessive, it replaced it with a demotion to a Medical Support Technician. Help me here; how does the Board know that the agency has work for a Medical Support Technician to do? Maybe all of its Medical Support Technician positions are filled and all the Medical Support Technician work is getting done. Does the Board expect the agency to run a RIF to vacate an existing Medical Support Technician position so that the appellant can be placed into it? Alternatively, does the Board think that the agency should just have the demoted employee sitting around waiting for more Medical Support Technician work to come in to be done? When the Board mitigates a removal to a demotion without evidence that there is lower-graded work to be done, it’s messing with the position management authority of the agency. Yes, if an adverse action penalty is too severe, the Board should be able to mitigate it – but not by interfering with the agency’s decisions as to how to run an efficient workplace. Wiley@FELTG.com

Tables of Penalties Can Be Deadly

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By William Wiley

Questions, we get questions. And here’s a good one from a longtime reader who is wrestling with an age-old problem: What to do with an unhelpful Table of Penalties.

Dear FELTG Rock Stars-

I’m another “loyal reader” and dealing with a charge issue.  My question is, from my table of penalties, there isn’t an official charge that includes the term “lack of candor.”  Do I just write up the analysis under the table’s charge “Misrepresentation, falsification, exaggeration, and concealment or withholding of material fact in connection with an official Government investigation, inquiry or other administrative proceeding”?

Thanks for your time.  I asked my boss if I could attend one of your FELTG training sessions, and he said no because it was too expensive.  In my opinion, my boss is short sighted. This employee is a really bad actor. Your class would have helped me tremendously.

And here’s our FELTG somewhat-snarky response:

Hi there, Loyal Reader-

I wonder what your boss thinks a single bad federal employee cost the government each year? We’d be happy to put on training for half that amount.

As for your question; no, no, no. Do NOT under any circumstances try to squeeze a Lack of Candor charge into a table of penalties that does not use that charge. Lack of candor is the brass ring in discipline charging these days, much-much better than charging falsification or any of that other stuff. Lack of Candor does not require you to prove an “intent to deceive” as you would have to prove with the charges in your table. Intent is difficult to prove and we avoid charges that require a proof of intent whenever we can.

The key is that you are not obligated to reference a charge in your table of penalties when you discipline an employee. See Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002). The Table is a guide, not controlling policy. So you simply draft the proposal letter like this: “Charge 1 – Lack of Candor” without any reference to the agency’s Table of Penalties. Then, use the rest of the Douglas Factors to justify and defend whatever penalty you select. When you get to Douglas Factor 7, you say this, “The charge in this case is not identified in the agency’s Table of Penalties.” Mic drop … you’re done.

Hope this helps.  Wiley@FELTG.com

Another Bold FELTG Recommendation

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By William Wiley

Dear President-to-Be:

I’ve been reviewing all the Board’s decisions for FY-2016 in preparation for our upcoming Updates webinar on Thursday, and I notice that the trend from past years continues. When looking at cases that agencies have lost, I lump the reasons for the losses into one of two groups:

  • Proof Losses – In these cases, the Board set aside a removal because it disagreed with the Deciding Official’s evaluation of the Douglas Factors or the agency’s presentation of a preponderance of the evidence to support its removal charges. I don’t see a lot of “fault” in these losses because an agency simply cannot predict what evidence the Board will find to be compelling. You do your best, but you just never know.
  • Practitioner Losses – In these cases, the Board set aside a removal because the agency representatives – lawyer or Human Resources specialists or both – failed to grasp a fundamental rule of MSPB practice. Examples of decisions in this group would be due process violations, failing to follow procedures, and improper charge framing.

As in previous years in which we have done this analysis, Practitioner Losses outpaced Proof Losses two-to-one. For every three cases agencies lost in FY 2016, one was because of a lack of enough proof, and two were because agency lawyers/HR specialists did not know Board law. And I mean BASIC Board law.

This situation is bad for America. In two-thirds of the FY 2016 cases that were lost, an employee was denied some right guaranteed by MSPB precedence. And the price for these rights-denials is often back pay with interest, attorney fees, and reinstatement. There is no joy in this situation for anyone: union, management, or private citizen.

From the pages of this newsletter, for nearly a decade, we have beseeched OPM to do something about this government failing. We have argued for OPM-approved training, testing, and certification of agency practitioners. We got nothing. We have pleaded with agency top leadership to mandate training for agency representatives. Not a peep. We’ve lobbied Congress to pass laws that would require that government employees who do this work know government employment law. Not even a thank-you for the sample textbooks we send them.

Well, maybe we’ve been barking up the wrong organizational tree.

I never claim to know much law beyond the four corners of federal employment law. But it is my understanding that to practice law in certain jurisdictions, an attorney has to be admitted to practice. For example, my fancy admission to the practice of law in California and before the US Supreme Court does me little good if I try to appear in some local parish courthouse in Louisiana. Did you see My Cousin Vinny? Well, that would be me, except I’d never get into the courtroom (and Marisa Tomei would never give me the time of day). Courts have their standards and they don’t want some doofus lawyer from out of town making a fool of himself before one of their judges.

So what if MSPB were to establish a standard of practice for lawyers and non-lawyers alike who represent agencies or clients in appeals to the Board? What if it required testing for anyone who wants to either appear on behalf of an agency or be entitled to attorney fees in a successful appeal of a removal? Maybe it could certify training groups to present programs that would be an alternative to testing, sort of the way that bar associations screen and approve organizations to provide continuing legal education.

There would need to be some exceptions, of course; perhaps some grandfathering in of practitioners who have represented in a certain minimum number of Board appeals. And of course, an employee can always represent herself. But a well-trained, recognized group of employment law practitioners, on both sides of the hearing room, would certainly make for a better government. Hey, Board! You’re in charge of protecting the merit systems. How about requiring that those who implement the merit systems know what in the devil they are doing.

Because these latest loss statistics say that some of them don’t. Wiley@FELTG.com

Starting to Lose “The Faith”

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By William Wiley

Here at FELTG, we are civil service systems people. We take the position that there’s little wrong with the system that cannot be fixed by the system. In other words, we may occasionally disagree with a decision issued by an oversight agency, but for the most part, we see the system as working.

And then I run into two decisions in the same week that give me pause and make me wonder if the system really is working.

First, a decision from the Federal Circuit Court of Appeals, the reviewing court that oversees the final orders issued by MSPB. It is rare that a decision issued by this court causes concern as most of its decisions affirm the Board, some years at a rate of 95% or so. That rate is to be expected, as it is built into the law that the court is to be deferential to the Board on matters of fact and most matters of law.

Unfortunately, that deference did not happen in a recent decision. The facts of the case are not in dispute. The appellant, a housekeeper, had a substance abuse problem. He was absent from work for six months. Most of that time, he was participating in a rehab program in a correctional facility. However, toward the end of that period, because he got in a fight with another program participant, he was excused from the rehab program and remained in jail for the last 38 days of the six-month period.

His employer, DVA, removed him in large part because of the six-month absence. Unfortunately, the judge concluded that the period of absence while the appellant was participating in the rehab program was an approved absence. That left only the last 38 days of unapproved absence. Although the judge felt this reduction warranted mitigation of the removal to a 40-day suspension, the Board set aside the judge’s decision and upheld the removal. Purifoy v. DVA, 2015-3196 (Fed. Cir. 2016).

Then things got screwy on appeal to the Federal Circuit.

First, the court agreed with the judge that the agency could not charge the appellant with AWOL for the time the appellant was in the rehab program. It reasoned that when the employee notified “one of his supervisors” (point of interest: federal employees have a single immediate supervisor when it comes to requesting leave) that he would be absent due to rehab, the supervisor’s response that the appellant should “take care of [himself]” was an approval of leave for the period of rehab. It reached this conclusion even though the official he spoke with told him, “You also need to see your supervisor and fill out the proper paperwork.”

Apparently, the Federal Circuit doesn’t know that a) employees have a single supervisor for leave purposes, not several; b) employees request leave, they don’t just notify of an absence; and c) “paperwork” is often required to determine the type of leave being requested, the justification for the absence, and the expected duration of absence. It is not some bureaucratic follow-up of no importance to the determination about whether the employee’s leave request will be approved.

Secondly, the court noted that the MSPB judge had found that the entire six-month absence was not supported by “substantial” evidence. Every practitioner in this business knows that the proper evidentiary standard is a “preponderance” of the evidence. Apparently, the court does not.

Third, the court agreed with the judge that a significant mitigating factor was the fact that the sustained period of 38 days of AWOL was for less time than the originally charged six-month period. Apparently, it is engaged in the fallacy that if a big charge is reduced to a smaller charge, the big penalty of removal should be reduced to a smaller penalty. That makes no sense. Charge a criminal with killing ten people, and prove that he actually killed only one still warrants a murder conviction. The reasonableness of the penalty should be based on the sustained charges without reference to the charges that were brought, but not sustained.

Fourth, the court is concerned that the appellant was not put “on clear notice that his absence would result in severe discipline.” Well, what difference does that make? We are concerned generally about clarity of notice so that an employee knows exactly what misconduct to avoid. Here, the dude was in jail. He could not have avoided the AWOL even if he was given exceedingly clear repeated notice of possible severe discipline BECAUSE HE WAS INCARCERATED! If given clear notice, would he have not become incarcerated? Perhaps staged a prison break so he would not be AWOL? Ridiculous.

Fifth, the court faulted the Board for its failure to discuss the adequacy of a penalty less than removal for the sustained 38 days of AWOL. In other words, why not suspend the employee instead of firing him? Well, if we suspend him we lose his services for some period of time without any guarantee that he will not be AWOL again. And the harm he is causing the agency by his AWOL is that it loses the benefit of his services. Therefore, if it were to suspend the employee, it would be doubling up on the harm caused by his misconduct. It’s either remove or take no adverse action at all. Given the harm to the coworkers caused by their having to do this guy’s work while he was AWOL 38 days, removal is reasonable. And keep in mind, the agency’s penalty selection has to only be reasonable, not perfect.

Finally, the court goes out of its way to note that the appellant represented himself in his appeal and conducted an “extensive pro se cross-examination of the government’s witnesses.” It reasons that due to his “credibility and demeanor as both a witness and an advocate at hearing,” the Board should give “special deference” to its judge’s conclusion that the appellant has rehabilitation potential.

Look. We teach trial advocacy here at FELTG (next offered in DC October 23-27, 2017) and we know how challenging it can be to conduct a cross-examination. At the same time, we know that conducting a cross-examination is in no way related to the ability of someone to avoid going AWOL in the future or to otherwise perform housekeeping duties.

It is the deciding official’s responsibility to assess the Douglas Factor for rehabilitation potential. At the time the decision was made to fire this individual, he had not yet acted his own advocate, even if that were to be relevant. This point is huge: Should the agency’s penalty assessment when made at the time to remove receive deference when all of the charges are sustained as was the case here (Payne v. USPS, 72 MSPR 646 (1996))? Or, should the Board reconsider the penalty selection factors at the time of appeal based not only on the Douglas Factors before the deciding official, but also based on factors that occurred post-removal through the hearing?

I feel sorry for this appellant. Addiction is a terrible burden to bear and a tough diagnosis to beat. At the same time, I feel sorry for his coworkers who had to pick up the slack when this guy did not report to work for an extended period of time. I feel sorry for the vet patients who might not have received the degree of housekeeping services that were warranted because whoever was doing this appellant’s job was too busy to do all that really should have been done. And I feel sorry for the agency that is trying to hold this individual accountable for his unapproved absence, and who correctly considered the penalty factors when it made the decision to remove the employee.

Our civil service system is being attacked by those running for political office and by those already on Capitol Hill for making it too difficult to remove federal employees. Interventionist second-guessing decisions like this one from the Federal Circuit feed into that attack, and perhaps actually do indicate that it is the system that is the problem.

I have another case that makes this same point, but it will need to wait for a separate article. In fact, here at FELTG, if indeed the system is the problem, we even have an earth-shaking alternative approach to removing individuals from government for our new President to consider. That recommendation will have to wait for an even later article. Wiley@FELTG.com